RPC I

Delhi Law Academy

 RANBIR     PENAL     CODE      [Sections  1 – 75]

 Section 1        Title and extent

 

 

Section 2         Offences committed within India

  • Every person shall be liable to punishment under this Code
    • and not otherwise
  • for every act or omission contrary to its provisions
    • of which he shall be guilty within India

 

Section 3         Offences committed beyond, but triable within, India

  • Any person liable by any Indian law to be tried
    • for an offence committed beyond India
  • shall be dealt with under this Code
  • for any act committed beyond India
    • as if such act had been committed within India

 

Section 4         Extension of Code to extra-territorial offences

  • Provisions of this Code apply also to any offence committed by
    • any citizen of India in any place without and beyond India
    • any person on any ship or aircraft registered in India wherever it may be

Explanation

  • “offence” includes every act committed outside India
    • which, if committed in India would be punishable under this Code

Illustration

  • A, who is a citizen of India
    • commits a murder in Uganda
  • He can be tried and convicted of murder
    • in any place in India in which he may be found

Section 5         Certain laws not to be affected by this Act

  • Nothing in this Act shall affect
    • provisions of any Act for punishing mutiny and desertion
  • Nothing in this Act shall affect
    • provisions of any special or local law

                                               

 

                                     CHAPTER    II              GENERAL    EXPLANATIONS

Section 6         Definitions to be understood subject to exceptions

  • Throughout this Code
    • every definition of an offence
    • every penal provision
    • every illustration of every such definition or penal provision
  • shall be understood subject to the “General Exceptions
    • though these exceptions are not repeated in such definition, penal provision, or illustration

Illustration

  • Sections in this Code which contain definitions of offences
    • do not express that a child under seven years of age cannot commit such offences
  • but the definitions are to be understood subject to the general exception
    • which provides that nothing shall be an offence which is done by a child under seven years of age

 

Section 7         Sense of expression once explained

  • Every expression which is explained in any part of this Code
    • is used in every part of this Code in conformity with the explanation

Section 8         Gender

  • Pronoun “he” and its derivatives
    • are used of any person, whether male or female

Section 9        Number

  • Unless the contrary appears from the context
    • words importing the singular number include the plural number
    • and words importing the plural number include the singular number


 Section 10      “Man”, “Woman”

  • The word “man” denotes a male human being of any age
  • The word “woman” denotes a female human being of any age


 Section 11      “Person”

  • “Person“ includes
    • any Company or Association or body of persons
    • whether incorporated or not


 Section 19      “Judge”

  • “Judge” denotes not only every person who is officially designated as a Judge
  • but also every person who is empowered by law
    • to give, in any legal proceeding, civil or criminal
    • a definitive judgment

Illustrations

  • A Magistrate exercising jurisdiction in respect of a charge
    • on which he has power to sentence to fine or imprisonment
    • is a Judge
  • A Magistrate exercising jurisdiction in respect of a charge
    • on which he has power only to commit for trial to another court
    • is not a Judge

Section 21       “Public Servant”

Words “public servant’ denote a person falling under any of these descriptions:

  • Every Commissioned Officer in Military, Naval or Air Forces of India
  • Every Judge including any person empowered by law to discharge any adjudicatory functions
  • Every person in service or pay of Govt or
    • remunerated by fees or commission for performance of public duty by Govt
  • Every person in service or pay of
    • a local authority
    • a corporation established under a Central or State Act
    • or a Government company

Explanation

  • Persons falling under any of the above descriptions are public servants
    • whether appointed by Govt or not

Section 22       “Movable property

Words “movable property” are intended to include

  • corporeal property of every description except
    • land
    • things attached to earth
    • things permanently fastened to anything which is attached to earth


 Section 23      Wrongful gain and loss

  • Wrongful gain
    • is gain by unlawful means of property
    • which the person gaining is not legally entitled
  • “Wrongful loss“
    • is loss by unlawful means of property
    • to which the person losing it is legally entitled

Gaining wrongfully, losing wrongfully

  • A person is said to gain wrongfully
    • when such person retains wrongfully
    • as well as when such person acquires wrongfully
  • A person is said to lose wrongfully
    • when such person is wrongfully kept out of any property
    • as well as when such person is wrongfully deprived of property


 Section 24      “Dishonestly”

  • Whoever does anything
  • with the intention of causing
    • wrongful gain to one person or
    • wrongful loss to another person
  • is said to do that thing “dishonestly”


 Section 25      “Fraudulently”

  • A person is said to do a thing fraudulently
  • if he does that thing with intent to defraud
    • but not otherwise


 Section 26      “Reason to believe”

  • A person is said to have “reason to believe” a thing
  • if he has sufficient cause to believe that thing
    • but not otherwise

Section 27      Property in possession of wife, clerk or servant

  • When property is in possession of
  • a person’s wife, clerk or servant
    • on account of that person
  • it is in that person’s possession


 Section 32      Acts include illegal omissions

Except where contrary intention appears from context

  • words which refer to acts done
    • extend also to illegal omissions


 Section 33      “Act”, “Omission “

  • The word “act” denotes
    • as well a series of acts as a single act
  • The word “omission” denotes
    • as well a series of omissions as a single omission

 

Section 34      Acts done in furtherance of common intention

  • When a criminal act is done by several persons
    • in furtherance of the common intention of all
  • each of such persons is liable for that act in the same manner
    • as if it were done by him alone

Comments by DLA on section 34

Section 34 recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence.

For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused having such intention.

What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissuaded themselves from the intended criminal act for which they shared the common intention.

The section speaks of doing “a criminal act by several persons.” As per section 33 the word “act” denotes as well a series of acts as a single act. This means a criminal act can be a single act or it can be the conglomeration of a series of acts.

Hence, under Section 34, one criminal act, composed of more than one act, can be committed by more than one persons and if such commission is in furtherance of the common intention of all of them, each would be liable for the criminal act so committed.

Section 34 lays down a principle of joint liability in the doing of a criminal act.

The section does not say “the common intention of all” nor does it say “an intention common to all”. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention.

To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.

The common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan.

It is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case.

Care must be taken not to confuse same or similar intention with common intention; the partition which divides “their bounds” is often very thin; nevertheless, the distinction is real and substantial.

The inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.

Such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment.

To attract Section 34 IPC two postulates are indispensable:

(1) The criminal act (consisting of a series of acts) should have been done, not by one person.

(2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.

Looking at the first postulate, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessary be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act.

Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable, for the result of them all, as if he had done them himself.

 

Section 35       Act done with a criminal knowledge or intention

  • Whenever an act
    • which is criminal only by reason of it being done with criminal knowledge or intention
  • is done by several persons
  • each of such persons who joins in the act with such knowledge or intention
  • is liable for the act
    • as if the act were done by him alone with that knowledge or intention

Comments by DLA on section 35

Section 35 says that when an act is done by several persons each of such persons who joins in the act with mens rea is liable for the act “in the same manner as if the act were done by him alone with that knowledge or intention”.

The section differs from Section 34 only regarding one postulate. In place of common intention of all such persons (in furtherance of which the criminal act is done), as required in Section 34, it is enough that each participant who joins others in doing the criminal act, has the required mens rea.

 

Section 37       Co-operation by doing one of several acts

  • When an offence is committed by means of several acts
  • whoever intentionally co-operates in commission of that offence
    • by doing any one of those acts
    • either singly or jointly with any other person
  • commits that offence

Illustration

  • A and B agree to murder  Z
    • by severally and at different times giving him small doses of poison
  • A and B administer the poison
    • with intent to murder Z
  • Z dies from the effects of the several doses of poison so administered to him…
  • Here A and B intentionally co-operate in commission of murder
  • As each of them does an act by which the death is caused
    • they are both guilty of the offence
    • though their acts are separate

Section 37 deals with the commission of an offence “by means of several acts”. The section renders anyone who intentionally co-operates in the commission of that offence “by doing any one of those acts” to be liable for that offence.

By Section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things ‘they also serve who only stand and wait’.

Section 38 also shows another facet of one criminal act being done by several persons without connecting the common bond i.e., “in furtherance of the common intention of all”. In such a case, they would be guilty of different offence or offences but not for the same offence.

By Section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.

Sections 35, 37 and 38,  in juxtaposition with Section 34, can be said to belong to one cognate group wherein different positions when more than one person participating in the commission of one criminal act are adumbrated.

 

Section 39       “Voluntarily”

  • A person is said to cause an effect “voluntarily
  • when he causes it
    • by means whereby he intended to cause it
    • or by means which he knew or had reason to believe likely to cause it

Illustration

  • A sets fire to an inhabited house in a large town
    • for facilitating a robbery
  • and thus causes the death of a person
  • Here, A may not have intended to cause death
    • and may even be sorry that death has been caused by his act
  • yet, if he knew that he was likely to cause death
  • he has caused death voluntarily


 Section 40      “Offence”

Except as mentioned in clauses 2 and 3 below

  • the word “offence” denotes a thing
    • made punishable by this Code

In Chapter IV and VA

  • and in sections 64-67, 71, 109-110, 112, 114-117, 194-195, 203, 211, 213-214, 221-225, 327-331, 347-348, 388-389 and 445
  • the word “offence” denotes a thing punishable
    • under this Code
    • or under any special or local law

In sections 141, 176-177, 201-202, 212, 216 and 441

  • the word “offence” has the same meaning when the thing punishable under the special or local law
  • is punishable under such law
    • with imprisonment for six months or upwards


 Section 41      “Special law”

  • A “special law”
    • is a law applicable to a particular subject

Section 42      “Local law”

  • A “local law”
    • is a law applicable only to a particular part of India


 Section 43      “Illegal”, “Legally bound to do”

  • The word “illegal“ is applicable to every thing
    • which is an offence
    • which is prohibited by law
    • which furnishes ground for a civil action
  • A person is said to be “legally bound to do“
    • whatever it is illegal in him to omit

Section 44      “Injury

  • “injury” denotes any harm whatever
    • illegally caused to any person
  • in body, mind, reputation or property

Section 45      “Life”

  • “life” denotes the life of a human being
    • unless the contrary appears from context

Section 46       “Death”

  • “death” denotes the death of a human being
    • unless the contrary appears from context

 Section 47      “Animal”

  • The word “animal” denotes any living creature
    • other than a human being

Section 52       “Good faith“

  • Nothing is said to be done or believed in “good faith”
    • which is done or believed without due care and attention

                                   

 

                               CHAPTER     III            PUNISHMENTS

Section 53       Punishment

Presently there are five types of punishments to which offenders are liable under this Code:

  • Death
  • Imprisonment for life
  • Imprisonment, which is of two descriptions:
    • Rigorous, that is, with hard labor
    • Simple
  • Forfeiture of property
  • Fine

Section 54       Commutation of sentence of death

In every case in which sentence of death is passed

  • appropriate Govt may, without consent of the offender
    • commute the punishment for any other punishment


 Section 55      Commutation of imprisonment for life

In every case in which sentence of imprisonment for life is passed

  • appropriate Govt may, without consent of the offender
    • commute the punishment for imprisonment not exceeding 14 years


 Section 55A    Definition of “appropriate Government”

“appropriate Government” means

  • in cases where sentence is
    • a sentence of death or
    • for an offence against any law on a matter to which executive power of Union extends
  • Central Government…
  • in cases where sentence (whether of death or not) is
    • for an offence against any law to which executive power of State extends
  • Govt of the State within which the offender is sentenced

Section 63      Amount of fine

Where no sum is expressed to which a fine may extend

  • amount of fine to which the offender is liable
    • is unlimited but shall not be excessive


 Section 64      Sentence for non-payment of fine

In every case in which the offender is sentenced to a fine

  • it shall be competent to Court
    • to direct that in default of payment of fine
  • the offender shall suffer additional imprisonment

Section 65      Limit to imprisonment for non-payment of fine

  • The term for which offender may be ordered to be imprisoned
    • in default of payment of a fine
  • shall not exceed one-fourth of the maximum imprisonment for the offence
    • if offence be punishable with imprisonment as well as fine

 Section 67      non-payment of fine in fine only case

If the offence be punishable with fine only

  • imprisonment for default of payment of fine
    • shall be simple
  • This imprisonment shall not exceed…
    • two months when fine is upto fifty rupees
    • four months when fine is upto 100 rupees
    • six months in any other case

Section 68       Imprisonment to terminate on payment of fine

  • The imprisonment which is imposed
    • in default of payment of a fine
  • shall terminate whenever that fine
    • is either paid or levied by process of law

Section 72       Punishment for one of several offences

  • Where judgment is given that a person is guilty of one of several offences
    • but that it is doubtful of which of these offences he is guilty
  • offender shall be punished for the offence which entails the lowest punishment

 Section 73      Solitary confinement

When a person is convicted of an offence which entails rigorous imprisonment

  • Court may, by its sentence, order
    • that the offender shall be kept in solitary confinement
  • for a period not exceeding three months in the whole:
    • not exceeding one month if imprisonment is upto six months
    • not exceeding two months if imprisonment is upto one year
    • not exceeding three months if imprisonment shall exceed one year


 Section 74      Limit of solitary confinement

In executing a sentence of solitary confinement

  • such confinement shall in no case exceed fourteen days at a time
    • with intervals between the periods of solitary confinement of not less duration than such periods

When the imprisonment awarded shall exceed three months

  • solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded
    • with intervals between the periods of solitary confinement of not less duration than such periods

Section 75       Enhanced punishment for certain offences

  • Whoever having been convicted of an offence
    • punishable under Chapters XII or XVII
    • with imprisonment of three years or upwards
  • shall be guilty of any offence punishable
    • under either of those Chapters with like imprisonment
  • shall be subject for every such subsequent offence
    • to imprisonment for life or to imprisonment of upto ten years

 

 

 

Indian Penal Code  –  Sections 1-75:     CASE   LAW

1.  Mahbub  Shah       v.       Emperor                       [1945 PC]                        4 Pages

 

3.  Suresh                   v.        State of U.P.                 [2001 SC]                         8 Pages

                                             

Case Law on section 34

 Mahbub  Shah       v.       Emperor     [1945 PC]

SIR MADHAVAN NAIR:

This is an appeal by special leave against judgement of the High Court of Judicature at Lahore, confirming on appeal the conviction of the appellant of the murder of one Allah Dad and the sentence of death passed on him by the Sessions Judge.

The main question raised in this appeal is whether the appellant has been rightly convicted of murder upon the true construction of Section 34, Penal Code. Section 34 runs as follows:

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

The prosecution case is that on 25th August, 1943, at sunrise, Allah Dad, deceased, with a few others left their village by boat for cutting reeds growing on the banks of the Indus river. When they had travelled for about a mile downstream, they saw Mohammad Shah, father of Wali Shah (absconder) bathing on the bank of the river. On being told that they were going to collect reeds, he warned them against collecting reeds from land belonging to him. Ignoring his warning, they collected about 16 bundles of reeds, and then started for the return journey. While the boat was being pulled upstream by means of a rope, Ghulam Quasim Shah, nephew of Mohammad Hussain Shah- acquitted by the High Court-who was standing on the bank of the river asked Allah Dad to give him the reeds that had been collected from his uncle’s land. He refused.

What happened subsequently was spoken to by boys Nur Hussain P.W. 10 and Nur Mohammad P.W. 11, whose version of the story has been accepted as true by the High Court and summarised as follows:

Quasim Shah then caught the rope and tried to snatch it away. He then pushed Allah Dad and gave a blow to Allah Dad with a small stick but it was warded off on the rope. Allah Dad then picked up the lari from the boat and struck Quasim Shah. Quasim Shah then shouted out for help and Wali Shah and Mahbub Shah came up. They had guns in their hands. When Allah Dad and Hamidullah tried to run away, Wali Shah and Mahbub Shah came in front of them and Wali Shah fired at Allah Dad who fell down dead and Mahbub Shah fired at Hamidullah, causing injuries to him. [Lari is a bamboo pole for propelling the boat, about ten feet long and six inches thick.]

The appellant Mahbub Shah has been convicted of murder under Section 302, read with Section 34, Penal Code. He was also convicted of the attempted murder of one Hamidullah Khan and sentenced to seven years’ rigorous imprisonment: but that conviction has not been brought before the Board.

Along with the appellant, his cousin Ghulam Quasim Shah, was also convicted under S. 302/34, Penal Code, and sentenced to transportation for life, but his conviction and sentence have been set aside by the High Court. One Wali Shah, who is said to have fired the shot that killed the deceased, is a fugitive from justice and has not been so far arrested.

Learned Judges of the High Court came to the conclusion that Ghulam Quasim was wrongly convicted of murder under Section 302/34, Penal Code, on the following reasoning. Bhandari J., with whom Teja Singh J. concurred, first held that Ghulam Quasim had no common intention of killing any member of the complainant party when he went to the bank of the river in order to demand the bundles of reeds which had been collected from his uncle’s lands. Then the learned Judge addressed himself to the question “whether a common intention to commit the crime which was eventually committed by Mahbub Shah and Wali Shah came into being when Ghulam Quasim Shah shouted to his companions to come to his rescue and both of them emerged from behind the bushes and fired their respective guns, and this he answered in the negative, holding that “so far as Quasim Shah was concerned, he did no more than ask his companions to come to his assistance when he was knocked with a pole by the deceased” and that “he could not have been aware of the manner in which assistance was likely to be rendered to him or his friends were likely to shoot at and kill one man or injure another.” In the result, he was acquitted of all offences.

The learned Judge then proceeded to examine the case of the appellant and Wali Shah. He stated that the case of Mahbub Shah, who was armed with a single barreled gun, and of Wali Shah, who had a double barreled gun, however, stood on a different footing. He distinguished their case on the following ground:

As soon as they ran to the assistance of Ghulam Quasim Shah, they fired simultaneously in the direction of the complainants killing Allah Dad on the spot and causing injuries on the person of Hamidullah Khan. It is difficult to believe that when they fired the shots they did not have the common intention of killing one or more of the complainant party. If so, both of them are guilty of murder notwithstanding the fact that the fatal shot was fired by only one of them, namely, Wali Shah, absconder.

It will be observed that according to the learned Judge a common intention to commit the crime came into being when appellant and Wali Shah fired the shots. Their Lordships will now proceed to consider whether the above reasoning is correct, and Section 34, Penal Code, has been rightly applied to the facts of the case.

Section 34 lays down a principle of joint liability in the doing of a criminal act. The section does not say “the common intention of all” nor does it say “an intention common to all”. Under the section, the essence of that liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. To invoke the aid of Section 34 successfully, it must be shown that the criminal act complained against was done by one of the accused persons in the furtherance of the common intention of all; if this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act were done by him alone.

This being the principle, it is clear to their Lordships that common intention within the meaning of the section implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan. As has been often observed, it is difficult if not impossible to procure direct evidence to prove the intention of an individual; in most cases, it has to be inferred from his act or conduct or other relevant circumstances of the case.

On careful consideration, it appears to their Lordships that in the present case, there was no evidence and there were no circumstances from which it might be inferred that the appellant must have been acting in concert with Wali Shah in pursuance of a concerted plan when he along with him rushed to the rescue of Ghulam Quasim. There was no evidence to indicate that Ghulam Quasim was aware that the complainant party had been cutting reeds from his uncle’s lands, or that the appellant and Wali Shah had been kept behind the bush to come and help him when called upon to do so.

Evidence shows that Wali Shah “happened to be out shooting game” and when he and the appellant heard Ghulam’s shouts for help they came up with their guns; the former shot the deceased, killing him outright and the appellant shot at Hamidullah Khan inflicting injuries on his person. Indeed, the High Court negatived the existence of a “common intention” at the commencement in the sense in which their Lordships have explained the term by stating –in considering the application of Section 34, Penal Code, to the case of Ghulam-what has been already quoted, viz:

that the sole point which requires consideration now is whether a common intention to commit the crime came into being when Ghulam shouted to his companions to come to his rescue and both of them emerged from behind the bushes and fired their respective guns.

Having answered the above question in the negative as regards Ghulam Quasim, the learned Judges thought, as Bhandari J. has expressly stated, that with respect to the appellant and Wali Shah, it must be held that the common intention of killing one or more of the members of the complainant party came into being later, when they fired the shots.

Their Lordships cannot agree with this view. Their Lordships are prepared to accept that the appellant and Wali Shah had the same intention, viz., the intention to rescue Quasim if need be by using the guns and that, in carrying out this intention the appellant picked out Hamidullah for dealing with him and Wali Shah, the deceased, but where is the evidence of common intention to commit the criminal act complained against, in furtherance of such intention? Their Lordships find none. Evidence falls far short of showing that the appellant and Wali Shah ever entered into a premeditated concert to bring about the murder of Allah Dad in carrying out their intention of rescuing Quasim Shah.

Care must be taken not to confuse same or similar intention with common intention; the partition which divides “their bounds” is often very thin; nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice. In their Lordships’ view, the inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.

In the circumstances, their Lordships are not satisfied that the appellant was rightly convicted of the offence of murder u/s 302, Penal Code, read with Section 34. His conviction for murder and the sentence of death passed on him should, therefore, be quashed.

* * * * *

       

Suresh     v.    State of U.P.         [2001 SC]

THOMAS, J. – Section 34 of the Indian Penal Code is a very commonly invoked provision in criminal cases. With a plethora of judicial decisions rendered on the subject the contours of bits ambit seem well-nigh delineated. Nonetheless, when these appeals were heard a two-Judge Bench felt the need to take a re-look at the provision as to whether and if so to what extent it can be invoked as an aid in this case. Hence these appeals were heard by a larger Bench.

In one of the appeals A-1 Suresh and his brother-in-law, A-2 Ramji, are fighting their last chance to get extricated from the death penalty imposed on them by a Session Court which was confirmed by a Division Bench of the High Court. In the other appeal Pavitri Devi, the wife of Suresh (also sister of Ramji) is struggling to sustain the acquittal secured by her from the High Court in reversal of the conviction for murder ordered by the Sessions Court with the aid of Section 34 IPC.

On the night of 5-10-1996 when Ramesh (brother of the appellant Suresh) and his wife and children went to bed as usual, they would have had no foreboding that it was going to be the last night they were sleeping on this terrestrial terrain. But after they, in their sleep, crossed the midnight line and when the half crescent moon appeared with its waned glow above their house, the night turned red by the bloodiest killing spree befallen on the entire family. The motley population of that small house was hacked to pieces by armed assailants, leaving none, but a single tiny tot, alive. The sole survivor of the gory carnage could have seen what happened inside his sweet home only in the night which itself turned carmine. He narrated the tale before the Sessions Court with the visible scars of the wounds he sustained on his person.

That infant witness (PW 3 Jitendra) told the trial court that he saw his uncle (A-1 Suresh) in the company of his brother-in-law (Ramji) acting like demons, cutting the sleeping children with axe and chopper. He also said that his aunt (A-3 Pavitri Devi) clutched the tuft of his mother’s hair and yelled like a demoness in thirst for the blood of the entire family.

Lalji (PW 1), the uncle of the decreased Ramesh (who is uncle of Suresh also) and Amar Singh (PW 2) a neighbour gave evidence supporting the version of PW 3 Jitendra. But the said two witnesses did not attribute any overt act to Pavitri Devi except saying that she too was present near the scene of occurrence. The house of the accused was situated not for away from the scene of occurrence, but across the road which abuts the house of the decreased.

The doctor who conducted the autopsy on the dead bodies of all the deceased described the horrifying picture of the mauled bodies. The youngest of the victims was one-year-old child whose skull was cut into two and the brain was torn as under. The next was a three-year-old male child who was killed with his neck axed and the spinal cord, trachea and the larynx were snipped. The next in line was Jitendra – a seven year old child. His immediate next elder was Monisha-a nine-year-old female child, who too was axed on the neck, mouth and chest with her spinal cord cut into two.

The mother of those little children, Ganga Devi, was inflicted six injuries which resulted in her skull being broken into pieces. The last was Ramesh – the bread-winner of the family, who was the father of the children. Four wounds were inflicted on him. All of them were on the neck and above that. The injuries on Ramesh, when put together, neared just short of decapitation.

PW 3 Jitendra had three incised wounds on the scapular region, but the doctor who attended on him (PW 6) did not probe into the depth of one of them, presumably because of the fear that he might require an immediate surgical intervention. However, he was not destined to die and hence the injuries on him did not turn fatal.

The motive for the above dastardly massacre was the greed for a bit of land lying adjacent to the house compound of the deceased which A-I Suresh claimed to be his. But the deceased Ramesh clung to that land and it resulted in burgeoning animosity in the mind of Suresh which eventually grew alarmingly wild.

The evidence of PW 1 Lalji and PW 2 Amar Singh was considered by the Sessions Court in the light of various contentions raised by the counsel for the accused. The trial Judge found the said evidence reliable. The Division bench of the High Court considered the said evidence over again and they did not see any reason to dissent from the finding made by the trail court: The evidence of PW 3 Jitendra, the sole survivor of the carnage, was evaluated with greater care as he was an infant of seven years. Learned Judges of the Division Bench of the High Court accepted the evidence of PW 3 only to the extent it secured corroboration from the testimony of P.Ws 1 and 2.

Learned Senior Counsel focused on two aspects. First is that acquittal of Pavitri Devi does not warrant interference from this court. Second is that this is not a case belonging to the category which compels the Court to award death penalty to the two appellants, Suresh and Ramji.

We will now deal with the role played by Pavitri Devi to see whether the Court can interfere with the acquittal order passed in her favour by the High Court. P.W. 3 said that Pavitri Devi caught hold of his mother’s hair and pulled her up, thereafter she went outside and exhorted that everybody should be killed. But P.Ws 1 and 2 did not support the aforesaid version pertaining to Pavitri Devi. According to them, when they reached the scene of occurrence Pavitri Devi was standing in front of the house of the deceased while the other two were inside the house engaged in the act of inflicting blows on the victims.

The position which the prosecution succeeded in establishing against A-3 Pavitri Devi is that she was also present at the scene of occurrence. Learned counsel for the State contended that such presence was in furtherance of the common intention of the three accused to commit the murders and hence she can as well be convicted for the murders under Section 302 IPC with the aid of Section 34 IPC. Learned counsel contended that if Section 34 IPC is to be invoked against Pavitri Devi the prosecution should have established that she had done some overt act in furtherance of the common intention.

We heard arguments at length on the ambit of Section 34 IPC. We have to consider whether the accused who is sought to be convicted with the aid of that section, should have done some act, even assuming that the said accused also shared the common intention with the other accused.

Section 34 reads thus:

Acts done by several persons in furtherance of common intention: When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

As the section speaks of doing “a criminal act by several persons” we have to look at Section 33 IPC which defines the “Act”. As per it, the word “act” denotes as well a series of acts as a single act. This means a criminal act can be a single act or it can be the conglomeration of a series of acts. How can a criminal act be done by several persons?

In this context, a reference to Sections 35, 37 and 38 IPC, in juxtaposition with Section 34, is of advantage. Those four provisions can be said to belong to one cognate group wherein different positions when more than one person participating in the commission of one criminal act are adumbrated. Section 35 says that when an act is done by several persons each of such persons who joins in the act with mens rea is liable for the act “in the same manner as if the act were done by him alone with that knowledge or intention”. The section differs from Section 34 only regarding one postulate. In the place of common intention of all such person (in furtherance of which the criminal act is done), as is required in Section 34, it is enough that each participant who joins others in doing the criminal act, has the required men rea.

Section 37 deals with the commission of an offence “by means of several acts”. The section renders anyone who intentionally co-operates in the commission of that offence “by doing any one of those acts” to be liable for that offence. Section 38 also shows another facet of one criminal act being done by several persons without connecting the common bond i.e., “in furtherance of the common intention of all”. In such a case, they would be guilty of different offence or offences but not for the same offence.

Hence, under Section 34, one criminal act, composed of more than one act, can be committed by more than one persons and if such commission is in furtherance of the common intention of all of them, each would be liable for the criminal act so committed.

To understand the section better, it is useful to recast it in a different form by way of an illustration. This would highlight the difference when several persons do not participate in the crime committed by only one person even though there was common intention of all the several persons. Suppose, a section was drafted like this: “When a criminal act is done by one person in furtherance of the common intention of several persons, each of such several persons is liable for that act in the same manner as if it were done by all such persons.”

Obviously Section 34 is not meant to cover a situation which may fall within the fictiously concocted section caricatured above. In that concocted provision, the co-accused need not do anything because the act done by the principal accused would nail the co-accused also on the ground that such act was done by that single person in furtherance of the common intention of all the several persons. But Section 34 is intended to meet a situation wherein all the co-accused have also done something to constitute the commission of a criminal act.

Even the concept of presence of the co-accused at the scene is not a necessary requirement to attract Section 34, e.g., the co-accused can remain a little away and supply weapons to the participating accused either by throwing or by catapulting them so that they can be used to inflict injuries on the targeted person. Another illustration, with advancement of electronic equipment can be etched like this: One of such persons, in furtherance of the common intention overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. We do not find any reason why Section 34 cannot apply in the case of those two persons indicated in the illustrations.

Thus to attract Section 34 IPC two postulates are indispensable:

(1) The criminal act (consisting of a series of acts) should have been done, not by one person.

(2) Doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such persons.

Looking at the first postulate pointed out above, the accused who is to be fastened with liability on the strength of Section 34 IPC should have done some act which has nexus with the offence. Such an act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. The act need not necessary be overt, even if it is only a covert act it is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. Even an omission can, in certain circumstances, amount to an act. This is the purport of Section 32 IPC. So the act mentioned in Section 34 IPC need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act, e.g., a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in given situation. Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34 IPC.

There may be other provisions in the IPC like Section 120-B or Section 109 which could then be invoked to catch such non-participating accused. Thus participation in the crime in furtherance of the common intention is a sine qua non Section 34 IPC. Exhortation to other accused, even guarding the scene etc. would amount to participation. Of course, when the allegation against an accused is that he participated in the crime by oral exhortation or by guarding the scene the court has to evaluate the evidence very carefully for deciding whether that person had really done any such act.

A Division Bench of the Madras High Court had said as early as in 1923 that “evidence of some distinct act by the accused, which can be regarded as part of the criminal act in question, must be required to justify the application on Section 34 IPC.” (vide Aydroos v. Emperor 1923 Mad).

In Barendra Kumar Ghosh v. King Emperor the Judicial Committee after referring to the cognate provision adverted to above, held thus:

Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable, for the result of them all, as if he had done them himself, for that act” and ‘the act’ in the latter part of the section must include the whole action covered by ‘a criminal act’ in the first part, because they refer to it.

It is difficult to conclude that a person, merely because he was present at or near the scene, without doing anything more, without even carrying a weapon and without even marching along with the other assailants, could also be convicted with the aid of Section 34 IPC for the offence committed by the other accused. In the present case, the FIR shows that A-3 Pavitri Devi was standing on the road when the incident happened. Either she would have reached on the road on hearing the sound of the commotion because her house is situated very close to the scene, or she would have merely followed her husband and brother out of curiosity since they were going armed with axe and choppers during the wee hours of the night. It is not a necessary conclusion that she too would have accompanied the other accused in furtherance of the common intention of all the three.

Thus we are unable to hold that Pavitri Devi shared common intention with other accused and hence her remaining passively on the road is too insufficient for reversing the order of acquittal passed by High Court in order to convict her with the aid of Section 34.

Learned Senior Counsel made an all out effort to save the convicted appellants from death penalty. The trial court and the High Court have given very cogent reasons and quite elaborately for choosing the extreme penalty. Knowing fully well that death penalty is now restricted to the rarest of rare cases in which the lesser alternative is unquestionably foreclosed as held by the Constitution Bench in Bachan Singh v. State of Punjab [1980 SC] we could not persuade ourselves in holding that the acts committed by A-1 Suresh and A-2 Ramji should be pulled out of contours of the extremely limited sphere. Even after bestowing our anxious consideration, we cannot persuade ourselves to hold that this is not a rarest of rare cases in which the lesser alternative is unquestionably foreclosed.

Accordingly, we dismiss both the appeals.

SETHI, J. (for himself and Agrawal, J.)(Concurring)-

We agree with the conclusions arrived at by Brother Thomas, J. in his lucid judgment.

However, in view of the importance of the matter, in so far as the interpretation of Section 34 of the Indian Penal Code is concerned, we have chosen to express our views in the light of consistent legal approach on the subject throughout the period of judicial pronouncements. For the applicability of Section 34 to a co-accused, who is proved to have common intention, it is not the requirement of law that he should have actually done something to incur the criminal liability with the aid of this section. It is now well settled that no overt act is necessary to attract the applicability of Section 34 for a co-accused who is otherwise proved to be sharing common intention with the ultimate act done by any one of the accused having such intention.

Section 34 recognises the principle of vicarious liability in the criminal jurisprudence. It makes a person liable for action of an offence not committed by him but by another person with whom he shared the common intention. It is a rule of evidence and does not create a substantive offence. The section gives statutory recognition to the commonsense principle that if more than two persons intentionally do a thing jointly, it is just the same as if each of them had done it individually. There is no gainsaying that a common intention pre-supposes prior concert, which requires a pre-arranged plan of the accused participating in an offence. Such a pre-concert or pre-planning may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on a spur of moment. Existence of a common intention is a question of fact in each case to be proved mainly as a matter of inference from circumstances of the case.

The dominant feature for attracting Section 34 is the element of participation in action resulting in the ultimate “criminal act”. The “act” referred to in latter part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act by several persons in furtherance of the common intention of all. The section does not envisage the separate act by all the accused persons for becoming responsible for the ultimate done criminal act. If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous.

Participation in the crime in furtherance of the common intention cannot conceive of some independent criminal act by all accused persons, besides the ultimate criminal act because for that individual act law takes care of making such accused responsible under the other provisions of the Code. The word “act” used in Section 34 denotes a series of acts as a single act. What is required under law is that the accused persons sharing the common intention must be physically present at the scene of occurrence and be shown to not have dissuaded themselves from the intended criminal act for which they shared the common intention.

In Barendra Kumar Ghosh v. King Emperor [1925 PC] the Judicial Committee dealt with the scope of Section 34 dealing with the acts done in furtherance of the common intention, making all equally liable for the results of all the acts of others. It was observed:

By Section 33 a criminal act in Section 34 includes a series of acts and, further, “act” includes omissions to act, for example, an omission to interfere in order to prevent a murder being done before one’s very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally co-operates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things ‘they also serve who only stand and wait’. By Section 38, when several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Section 37 provides that, when several acts are done so as to result together in the commission of an offence, the doing of any one of them, with an intention to co-operate in the offence (which may not be the same as an intention common to all), makes the actor liable to be punished for the commission of the offence.

In Ramaswami Ayyangar v. State of Tamil Nadu [1976 SC] this Court declared that Section 34 is to be read along with preceding Section 33 which makes it clear that the “act” mentioned in Section 34 includes a series of acts as a single act. The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in the criminal enterprise. Even a person not doing any particular act but only standing guard to prevent any prospective aid to the victims may be guilty of common intention. However, in case of an offence involving physical violence it is essential for the application of Section 34 that such accused must be physically present at the actual commission of crime for the purposes of facilitating accomplishment of “criminal act” as mentioned in that section.

The distinction between a “common intention” and a “similar intention” which is real and substantial is also not to be lost sight of. The common intention implies a pre-arranged plan but in a given case it may develop at the spur of the moment in the course of the commission of the offence. Such common intention which developed at the spur of the moment is different from the similar intention actuated by a number of persons at the same time. The distinction between “common intention” and “similar intention” may be fine but is nonetheless a real one and if overlooked may lead to miscarriage of justice.

However, in this case on facts, the prosecution has not succeeded in proving that Pavitri Devi shared the common intention with the other two accused persons, one of whom was her husband and the other her brother. It has come in evidence that when the witnesses reached on the spot, they found the said accused standing on the road whereas the other accused were busy committing the crime inside the house. The exaggerated version of PW3 regarding the participation of Pavitri Devi by allegedly catching hold of his mother’s hair cannot be accepted as P.Ws 1 and 2 have not supported the aforesaid version. The High Court was, therefore, justified in holding that Pavitri Devi did not share the common intention with the other accused persons. By her mere presence near the place of occurrence at or about the time of crime in the absence of other evidence, direct or circumstantial, cannot hold her guilty with the aid of Section 34. But in case the prosecution had succeeded in proving on facts of her sharing of common intention with A1 and A2, she could not be acquitted of the charge framed against her only on the ground that she had actually not done any overt act.

The appeal of the State filed against Pavitri Devi has no merit and has thus rightly been dismissed by Brother Thomas, J.

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                        ***Pandurang         v.         State of Hyderabad                [1955  SC]

BOSE, J. – Five persons, including the three appellants, were prosecuted for the murder of one Ramchander Shelke. Each was convicted and each was sentenced to death under Section 302 of the Indian Penal Code.

The appeals and the confirmation proceedings in the High Court were heard by M.S. Ali Khan and V.R. Deshpande, JJ. They differed. The former considered that the convictions should be maintained but was of opinion that the sentence in each case should be commuted to imprisonment for life. The latter favoured an acquittal in all five cases. The matter was accordingly referred to a third Judge. He agreed with the first about the convictions and adjudged all five to be guilty under Section 302. On the question of sentence he considered that the death sentences on the three appellants, Pandurang, Tukia and Bhilia, should be maintained and that those of the other two should be commuted to transportation for life.

The prosecution case is this. On 7-12-1950, about 3 o’clock in the afternoon Ramchander Shelke (the deceased) went to his field with his wife’s sister Rasika Bai and his servant Subhana Rao. Rasika Bai started to pick chillies in the field while Ramchander went to another field which is about a furlong away. Rasika Bai heard shouts from that direction, so she ran to the river bank with Subhana and they both say that they saw all five accused attacking Ramchander with axes and sticks.

Rasika Bai shouted out to the assailants not to beat Ramchander but they threatened her and then ran away. Ramchander died on the spot almost immediately.

Rasika Bai and Subhana both give substantially the same version of what they saw of the assault. They heard Ramchander’s cries from the direction of the river bank and rushed there. They say they saw all five accused striking him, the three appellants Pandurang, Tukia and Bhilia with axes, the other two, who have not appealed, with sticks. Both witnesses are agreed on the following points –

  • Tukia struck Ramchander on his cheek; Rasika Bai adds that he also struck him on the head;
  • Pandurang hit him on the head;
  • After these blows Ramchander fell down and then Bhilia hit him on the neck.

After this all the accused absconded. They were arrested on different dates and were committed to trial separately.

We think Rasika and Subhana are telling the truth when they say that these two accused [Nilia and Tukaram] were also there but we think that because of that they think they must have joined in the attack and so have added that detail to their story. It is also possible that Nilia did hit out at Ramchander but that the blow did not land on his body. In any case, they only had sticks in their hands which have not even been conceded the dignity of lathis. So the part they played was negligible.

Medical evidence shows that the injury that caused death was the one on the neck. All the eyewitnesses are agreed that Bhilia was responsible for that. Bhilia was directly charged with the murder and the injury on the throat is ascribed to him in the charge. We uphold his conviction under Section 302 of the Indian Penal Code.

The injury on the throat having been accounted for, we are left with three. They are –

  • an incised wound on the scalp above the left ear,
  • an incised wound on the scalp, central part, and
  • a lacerated wound on the left side of the face which crushed the upper and lower jaws including the lips and teeth.

The doctor says that (1) and (2) could not have caused death but that the third could. Rasikabai and Subhana are agreed that the only person who struck on the cheek is Tukia. Rasikabai adds that he also hit Ramchander on the head. That means that Tukia and Pandurang caused the two non-fatal injuries on the head, one each, and that Tukia alone caused the fatal one on the cheek. Tukia’s conviction under Section 302 of the Indian Penal Code was therefore justified.

In Pandurang’s case we are left with the difficult question about Section 34 of the Indian Penal Code. But before we deal with that, we will set Section 149 of the Indian Penal Code aside. There is no charge under Section 149 and, as Lord Sumner points out in Barendra Kumar Ghosh v. King-Emperor, Section 149, unlike Section 34, creates a specific offence and deals with the punishment of that offence alone. There is, in our opinion, no evidence here which would justify the conclusion of a common object even if one had been charged.

Ramchander bought a field called Hatkerni at Neemgaon about a year before the murder. Narsabai tells us that the three accused Nilia, Bhilia and Tukia, all of whom are Lambadas used to live in that field. When Ramchander bought it he turned them out and she says that gave them cause for enmity against him.

Now even if it be accepted that this evidence is indicative of prior concert, it only embraces the three Lambadas, Nilia, Bhilia and Tukia. Pandurang, who is a Hatkar, is not included. As this is the only evidence indicating a common purpose, and as we know nothing about what preceded the assault (for the witnesses arrived after it had started), we cannot gather any common object from the fact that Pandurang, though armed with an axe, only inflicted a light blow on the scalp which did not break any of the fragile bones in that region and from the fact that two others who were lightly armed with what have been called “sticks” inflicted no injuries at all. Section 149 is therefore out of the question.

Turning now to Section 34, that was not charged in Pandurang’s case but we need not consider whether such an omission is fatal because even if it had been charged there is no evidence from which a common intention embracing him can legitimately be deduced.

As we have just said, the witnesses arrived at a time when the beating was already in progress. They knew nothing about what went before. We are not satisfied that Tukaram is proved to have done anything except be present, and even if it he accepted that Nilia aimed a blow at Ramchander’s thigh he was so half hearted about it that it did not even hit him; and in Pandurang case, though armed with a lethal weapon, he did no more than inflict a comparatively light head injury.

It is true they all ran away when the eye-witnesses arrived and later absconded, but there is nothing to indicate that they ran away together as a body, or that they met afterwards. Rasikabai says that the “accused” raised their axes and sticks and threatened her when she called out to them, but that again is an all embracing statement which we are not prepared to take literally in the absence of further particulars. People do not ordinarily act in unison like a Greek chorus and, quite apart from dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say “all” even when they only saw “some” because they are too lazy, mentally, to differentiate. Unless therefore a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value. We are unable to deduce any prior arrangement to murder from these facts.

Now in the case of Section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor. Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan.

In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor and Mahbub Shah v. King-Emperor.

The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a prearranged plan however hastily formed and rudely conceived. But pre-arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.

In the present case, there is no evidence of any prior meeting. We know nothing of what they said or did before the attack, not even immediately before. Pandurang is not even of the same caste as the others Bhilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha. It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and pre-arrangement, or a running away together in a body or a meeting together subsequently. But, to quote the Privy Council again, “the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case”.

But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of cases. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, “the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis”. In the present case, we are of opinion that the facts disclosed do not warrant an inference of common intention in Pandurang case. Therefore, even if that had been charged, no conviction could have followed on that basis. Pandurang is accordingly only liable for what he actually did.

In our opinion, his act falls under Section 326. A blow on the head with an axe which penetrates half an inch into the head is, in our opinion, likely to endanger life. We therefore set aside his conviction under Section 302 and convict him instead under Section 326. We accordingly set aside the sentence of death and alter it ten years’ rigorous imprisonment.

That leaves the question of sentence in the case of Bhilia and Tukia. We are of opinion that the sentence should be reduced to transportation in these two cases mainly because of the difference of opinion in the High Court, not only on the question of guilt, but also on that of sentence. When appellate Judges, who agree on the question of guilt, differ on that of sentence, it is usual not to impose the death penalty unless there are compelling reasons. We see no reason to depart from this practice in this case and so reduce the sentences of death in the case of Bhilia and Tukia to transportation for life.

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